Friday, May 01, 2009

Silencing the people a dangerous idea

An activist judge is no longer a rarity nowadays. The United States’ Supreme Court is a clear example of the push-and-pull tussle between judges who favour judicial activism on one hand, and judicial restraint on the other. While some judges are for sustaining the concept of a “living Constitution,” others see it as contrary to a judge’s sworn allegiance to uphold the Constitution because it encourages judges to write their own laws. Yet, judicial activism has been largely confined inside the courtroom and very rarely exhibited in public.

But not the Chief Justice of the Supreme Court of the Philippines. Chief Justice Reynato Puno is never shy to speak out his mind on legal issues that aim to protect the economic, social and cultural rights of the poor. In a public forum organized by BAYAN and the National Union of People’s Lawyers last year, he said that the Supreme Court will consider expanding the writ of amparo, and will address harassment suits against those who exercise their constitutionally-guaranteed economic, social and cultural rights.

Chief Justice Puno may simply be stressing the duty of the courts to protect minority rights under the present regime where a sitting government is prepared to harness all its political resources to distort constitutional democracy or the rule of law. But when a judge represents the political sentiments of the day in public forums, does he cross the divide between the separation of powers and thus subvert the constitutional process?

Rightly or wrongly, the Chief Justice has struck a mother lode of controversy, particularly in regard to harassment suits which are popularly known in legal circles as “SLAPP suits,” an acronym for Strategic Lawsuits Against Public Participation.

SLAPP dates back to the earliest years of the United States when citizens occasionally were sued for speaking out against corruption in government. Such lawsuits were commonly dismissed by the courts and SLAPPs fell into general disuse until the 1960s and 1970s. During those decades, a wave of political activism concerning issues from the environment to minority rights sparked suits claiming defamation, libel and business interference from affected parties, mostly corporations and big business interests. By the 1980s and 1990s, SLAPPs have been observed as seriously hampering participation in the U.S. political system.

“Thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat," write law professors George Pring and Penelope Canan of the University of Denver who coined the acronym while studying this form of litigation in 1984.

SLAPPs have been directed against individuals and groups that have spoken in public forums on a wide variety of issues, such as against real estate development, the actions of public officials, environmental damage or pollution and unwanted land use. They have also been used against those who worked publicly for the rights of consumers, workers, women, minorities and others. SLAPP defendants have been sued for apparently lawful actions such as circulating a petition, writing to a local newspaper, speaking at a public meeting, reporting violations of the law, or participating in a peaceful demonstration.

In their studies, Pring and Canan found that “filers of SLAPPs rarely win in court yet often ‘win’ in the real world, achieving their political agendas.” They also found that “SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out – ‘chilled’ in the parlance of the First Amendment commentary.”

The goals of the SLAPP plaintiff are accomplished when the defendant yields to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. Although a SLAPP filer usually loses in court, he or she may achieve the goal of silencing future political opposition.

Initially, Pring and Canan saw such suits as attacks on traditional free speech and regarded them as mere intimidation lawsuits. But as they studied them further, they discovered something more important was at stake, that it was not just free speech under siege, but the right to petition government for a redress of grievances, an older and even more central part of the U.S. Constitution.

The numerous SLAPP cases in the Philippines are nothing new but the continuation of the practice of powerful corporations and big business in bringing the formidable powers of government and industry together for the purpose of suppressing the views of people with complaints against the system. Corporate libel lawsuits are being filed against those who oppose or criticize the activities of these corporations hoping they will be SLAPPed into submission.

The Kilusang Magbubukid ng Pilipinas (KMP), Kilusang Mayo Uno (KMU), and Kalikasan-People’s Network for the environment, for instance, have reported a number of harassment suits filed against their members and supporters. Peasants in Cagayan Valley and in Cadiz were charged with arson and theft to silence them from protesting against their landlords, prompting the KMP secretary-general to describe the charges as tantamount to criminalization of agrarian cases. A similar incident involving workers on strike who were charged with various common crimes could be characterized as criminalization of labour disputes. In Sibuyan, 80 teachers were charged with illegal assembly and grave coercion. In Nueva Vizcaya, Oxiana Royalco Resources Mining Company filed a petition for permanent injunction against 24 leaders of indigenous people to prevent them from continuing their barricade.

In December 2007, a Philippine regional trial court dismissed a P5.5 million civil case filed by Davao-based banana exporter Lapanday Agricultural and Development Corporation (Ladeco) against toxicologist Dr. Romeo v. Quijano, president of Pesticide Action Network Philippines, and his daughter Ilang-Ilang Quijano, a journalist.

Separate civil and criminal cases were also filed by Ladeco against the Quijanos after they published an article exposing the health and environmental effects of pesticide poisoning in a Davao banana plantation. The criminal libel case was dismissed in 2002.

Although the court awarded attorney’s fees to the Quijanos in the amount of P50,000, they were denied their claim for moral damages. The Quijanos spent more than P300, 000 in legal costs for their defence.

Meanwhile, another libel case in the amount of P10 million was filed by Lafayette Mining against the Center for Environmental Concerns-Philippines (CEC-Phils), a research NGO and its executive director. Lafayette Mining Limited is an Australian-owned mining company that controls the Arroyo administration’s flagship mining project in Rapu-rapu island in Albay. CEC was charged with libel for producing and distributing a handout entitled “Rapu-Rapu, A Struggle Against Mining Liberalization and Plunder in the Philippines” to stockholders of Lafayette in Australia. The Lafayette Mining project has incurred two mine tailings in 2005 killing fish in the barangays adjacent to the mine site and the nearby coastline.

SLAPPs are targeting individuals or groups of individuals, labour unions, community residents, or social advocacy groups for exercising their freedom of speech or of the press or their right to peaceably assemble or petition the government for redress of grievances on matters of public concern. These harassment suits are threatening the very foundation of citizen involvement and public participation in democracy.

You can be sued simply for exercising your cherished right to speak out on a public issue, for telling your government what you think, want or believe in. All the while we have always thought that this right is constitutionally protected, yet government and industry can be in cahoots in silencing those who speak out or express their opinions against public matters.

Those who file SLAPP suits have been effectively using the legal system in quieting public opinion. When you have been SLAPPed, you have no other choice but to mount a defence and legal representation is very costly. While the SLAPP filer may eventually lose, you could end up the bigger loser.

Some states in the United States have already enacted anti-SLAPP legislation that makes it very difficult to file and initiate a SLAPP suit. Other jurisdictions have also allowed SLAPPbacks which enable defendants to recover damages for malicious prosecution and abuse of process.

It is quite human nature to feel offended or to react with anger when you become the target of a criticism. When you have the resources and the power, there is a very strong temptation to sue your critics because it could be an effective way of silencing negative opinions or adverse publicity. In his heyday as a media baron, Conrad Black used to sue those who wrote unpleasant stories about him or his newspaper empire. His libel claims suited him well since the cases he brought against his critics were settled mostly in his favour.

This also reminds me, although on a smaller scale, of two Filipino community organizations in Toronto who initiated defamation proceedings against individuals who were very vocal in their opposition and criticism of the leaders of these organizations. Imagine if SLAPPs can be effectively filed in much more complex public activities involving big industry and the government against national or international associations or labour unions, then how much is it easier to silence criticism at the scale of a community organization? In any event, the damage to the foundation of democratic participation and the exercise of individual freedoms at bottom is equally identical.

Public participation is akin to empowerment and is a vital part of democratic governance. It is also a potential solution to the crisis in public trust in many governments today. Thus, in many jurisdictions the right to public participation is enshrined by law. For example, the right to petition has been part of the First Amendment of the U.S. Constitution. In the Philippines, the right to peaceably assemble to redress a grievance is protected by Section 4 of the Bill of Rights in the Constitution.

Despite constitutional protection, SLAPPs, however, continue the use of the legal system for the purpose of intimidation and as a threat to citizen involvement and public participation. A vigilant citizenry must not fall asleep whenever a SLAPP suit is filed and must defend it by all means and not be intimidated into silence.

Suppressing people to the point of muteness is antithetical to democracy. Silencing people who have a grievance to redress against a corporation or their government is one step closer to dictatorship.